Lord Morris of Aberavon: My Lords, I will confine myself to the legal process in the triggering of Article 50 and whether the rule of law—which the noble Lord, Lord Faulks, dealt with meaningfully—and the judiciary have been damaged.
I do not dispute the individual’s right to litigate, nor the Government’s right to appeal. My concern is with the fall-out and the Government’s machinery for legal advice. The Government’s legal advisers are the law officers, and their tasks are difficult. They have to speak truth unto power in the face of occasional, strong political pressures, particularly from Downing Street which has its own political agenda. Lady Justice Hallett demonstrated this in her report into the on-the-runs Irishmen.
There is a strong convention that neither the Attorney’s legal advice is disclosed, nor whether it was sought. However, it would be an immense advantage in these exceptional circumstances if we knew whether the advice of the Attorney was sought, particularly as to whether an appeal should have been made to the Supreme Court. The Divisional Court, under the Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, delivered a masterly judgment in a very short time. This should be a template for the future in form and substance. In the gap between the court’s judgment and the appeal, the pundits were more and more saying that the Government might well lose the appeal. Did the Attorney advise on appealing and did he canvass the risks of damage to the judiciary, coincidentally prolonging uncertainty?
When there is a countervailing public interest, exceptionally, the fact of seeking the Attorney’s advice has been disclosed. It was done in the case of the Iraq war. Mr Douglas Hurd, the then Foreign Secretary, also gave a great deal of detail in the Commons on Sir Nicholas Lyell’s advice on aspects of the Maastricht treaty.
After the Divisional Court’s judgment, three national newspapers waded in with excruciating headlines which are not worthy of repeating. We also had detailed analysis of the personal connections of judges of the Supreme Court with Europe and European institutions, written with a view to muddying the waters in so far as their integrity was concerned. At paragraph 197 of the judgment, the noble and learned Lord, Lord Neuberger, said:
“The only issue in dispute is whether the action by the Crown … must be authorised by an Act of Parliament”.
The noble and learned Lord, Lord Hope, was right to remind us of paragraph 123 that the resolution of the House of Commons is just not enough.
In this modern age, the judiciary is called upon time after time—particularly in judicial review cases—to adjudicate on matters with a strong political flavour. I value its role. Did the Cabinet consider the dangers to the judiciary and to the respect for the rule of law in the process of appealing against what many of us thought was a very clear judgment and which was the object of some appalling press comments?
When I was in Cabinet, a long time ago in the 1970s, before the office of Lord Chancellor was downgraded, the Cabinet had the advantage of hearing  the views of an experienced and heavyweight Lord Chancellor. Although the Lord Chancellor was not the Cabinet’s legal adviser, no sensible Prime Minister would let him hide his light under a bushel. His views would be welcomed by the Cabinet and by the Attorney. The present Lord Chancellor is not a lawyer, but she has all the legal resources of the Department of Justice, unless these have been dismantled. It would be useful to know what considered advice—if any—she gave the Cabinet. All I know is that she was tardy in carrying out her legal and constitutional duty to defend the judiciary under Section 3 of the Constitutional Reform Act 2005. The House was not impressed by her laboured attempts at the Dispatch Box to defend her delayed comments. There is more to being Lord Chancellor than wearing judicial robes.
I had the temerity to advise the House on 16 July that there was a need for parliamentary approval on two grounds. The first is political, as in going to war. The royal prerogative was outdated for the purpose. The second was that one Act of Parliament giving rights could not be undone by the royal prerogative, but taken away only by another Act of Parliament. I was fortunate to have read the article in the Times by the noble Lord, Lord Pannick. I believe that the noble Lord, Lord Lisvane, to whom we listened with very great respect, was the only noble Lord who disagreed with my second proposition.
In conclusion, although there have been regrettable, unfortunate incidents to the claimant, some of the resident population and others, I am confident that the judiciary and the rule of law are sufficiently resilient.